Andrew Bolt: exposed by his own freedom

The state of debate over the amendments to the Racial Discrimination Act suggested by Attorney General George Brandis continues to be bleak.

Most recently, two people from the Human Rights Law Centre happily wrote that while they opposed bans on street preachers in Rundle Mall in Adelaide they supported bans on protesters harassing women seeking abortions. They allowed that this ‘seems contradictory’; they preferred to think of their position as nuanced.

It seems to me that those who claim to support freedom of speech (and the authors are dismissive of ‘simplistic’ claims about the value of freedom of speech) often do little more than advocate for the rights of people with whom they agree. Like the abortion picketers, Max Brenner protesters may also harass those who seek to buy goods, citing what they claim are links to Israeli human rights violations. Equally, opponents of abortion literally think that they are protesting the murder of babies. Their protests may be offensive, but it is in the nature of freedom of speech to involve defending the freedom to express views that are considered shocking by others. For those who hold moderate, politically-mainstream views, it is easy to forget that the category of ‘shocking’ and ‘appalling’ included opponents of the First World War in Western countries – and at various times advocates of communism, the Wobblies, anarchists and so on.

On the other side of the debate are other ‘nuanced’ supporters of freedom of speech. These include Brandis, Andrew Bolt and so on – people who who have no objections to our defamation laws (which were introduced in the Howard administration, under which Brandis served).

Those of us who believe in freedom of speech need to defend that freedom, even when we are not great admirers of the people (like Bolt) whose rights we defend. At the same time, the corollary of opposing legal restrictions and penalties on speech is a duty to criticise the very speech that we would leave unpenalised.

When one has a look at Bolt’s blog, one sees that section 18C does not appear to have induced greater sensitivity or compassion on issues relating to racial minorities. Consider the post that begins ‘parts of Sydney now seem to have the disorder we’d expect in a Beirut.’

Oh? Beirut? What an odd choice of city! He links to a story noting the shooting was in Sydney’s South West. His blog goes on to observe. ‘I do not know who police are looking for in these latest shootings so leap to no conclusions about their ethnicity. Unrelated, then, is this comparison, provided by reader Sasha.’ The comparison shows two maps, one of where Muslims are concentrated in Sydney, and one of Sydney gun crime. As the ‘ethnicity’, number of Muslims and gun crime are unrelated, it is surely a coincidence that Bolt happened to mention Beirut. On an unrelated note, I was whistling when I was walking my dog the other day.

Yet Bolt has not explained why, if he is so sure his articles were actually right, his legal team only cross examined three of the plaintiffs.

Indeed, it is useful to consider what was and was not disputed:

65. By their pleadings both Mr Bolt and HWT have admitted that each of Ms Heiss, Ms Cole, Mr Clark, Dr Wayne Atkinson, Mr Graham Atkinson, Professor Behrendt, Ms Enoch, Mr McMillan and Ms Eatock are of Aboriginal descent; that since each was a child, at the times of publication of each of the Articles, and at present, each person did and does genuinely self-identify as an Aboriginal person and did and does have communal recognition as an Aboriginal person. It is admitted that each of these persons has fairer rather than darker skin colour. That each was reasonably likely to be offended and was offended by the Articles or parts thereof is denied.

Okay, so in court, Bolt admitted that all those discussed are Aboriginal, but have ‘fairer rather than darker skin colour’. That was before he was silenced by that awfully oppressive Federal Court ruling.

Nevertheless, once again, on his blog, he refers to a Guardian article critical of him by Bindi Cole, one of the plaintiffs in the RDA case. More exactly, Bolt refers to a reader of that article at the Guardian, and links to a comment. Bolt’s blog notes:

a Guardian reader of an article by one of the “fair-skinned Aborigines” who successfully sued me identifies an error I am said to have made about her – one of the errors which is said to justify the banning of two of my columns arguing for an end to “race”-based division. I’d like to say more in response to the article but the legal danger is now too high

His link is here. And if you scroll down, you see what he’s talking about. A commenter refers to this Quadrant link. It reveals a picture of Bindi Cole’s grandmother, with a quote from Cole above it with the words ‘because she was black’ in bold. Presumably, readers are invited to chortle that the woman does not look particularly dark-skinned.

Meet, say, acclaimed St Kilda artist Bindi Cole, who was raised by her English-Jewish mother yet calls herself “Aboriginal but white”.
She rarely saw her part-Aboriginal father, and could in truth join any one of several ethnic groups, but chose Aboriginal, insisting on a racial identity you could not guess from her features.

She also chose, incidentally, the one identity open to her that has political and career clout.

Let us pause, for a moment, and consider Bolt’s apparent conviction that being Aboriginal delivers more ‘political and career clout’ than a white or Jewish identity would. According to Justice Bromberg, Cole discovered her mother had Jewish heritage after her mother died (para 75). Justice Bromberg held that her father was Aboriginal, her mother was not. But was Cole raised by her mother? The judgment notes (paras 76-78:

In her early childhood and until she was seven or eight years old, Ms Cole lived with her mother, who was a single parent, in St Kilda. Her father had been a part of her life until she was about six years old. When her mother became unfit to look after her from the age of seven or eight, Ms Cole lived with her father for a year before living with, and being looked after by, her paternal grandmother. She lived with her paternal grandmother for the next four years. She lived in the country with her grandmother, her grandmother’s eight children, cousins, aunties and uncles who were and who all identified as Aboriginal persons. She later returned to Melbourne and continued to live with her grandmother. She was always surrounded by family who identified as Aboriginal. She moved back to live with her mother at about the age of 13, but regularly visited and maintained strong ties with her maternal grandmother. Ms Cole’s mother died when Ms Cole was 16. Her Aboriginal father had come back into her life when she was about 14 or 15 and she had been in regular contact with him. She continued to maintain strong ties with her maternal grandmother until she passed away when Ms Cole was 18. Ms Cole grew up in quite disadvantaged circumstances.

It was Ms Cole’s Aboriginal grandmother who instilled in her a sense of pride in her Aboriginal heritage. However, Ms Cole was aware of her Aboriginal heritage before she went to live with her grandmother. Her mother always told her that she was Aboriginal. Ms Cole has always regarded herself to be Aboriginal. She did not choose to be Aboriginal.

In 2008, Ms Cole learnt about her maternal heritage from her maternal grandmother. At about that time she began to describe herself as of English, Jewish and Wathaurung descent. She agreed that there was nothing to have precluded her from deciding to identify more closely with her Jewish heritage but said that this was something she had not explored because she does not feel a connection to her Jewish heritage.

As for all the opportunities supposedly only available for Aboriginal people, Cole

has never applied for any positions designated exclusively for Aboriginal people. She has worked hard for everything that she has achieved. She works for herself and does not claim social security benefits. She applies for grant funding which is available to support artistic work. She probably applies for more non-Aboriginal funding than funding available to Aboriginal people. She applies for funding because it is there and available irrespective of whether the funding is designated for Aboriginal people.

Meanwhile, while ‘Ms Cole was cross-examined … in the main her evidence was not contested’. But now that Bolt has discovered that her grandmother’s skin wasn’t dark enough for him, he thinks that perhaps … well, who knows? Bolt has, he says, been silenced. One might almost forget that Bolt’s article was not about Cole’s grandmother, but about her mother, who Bolt falsely claimed raised her – and that Bolt falsely said that Cole rarely saw her father.

Indeed, when one reads about the actual upbringing of Bindi Cole, one can only be appalled at Bolt’s shocking misrepresentation of the facts, and his scurrilous insinuations about Cole.

But if he changes the subject – or if certain writers at Quadrant are willing to do so for him – well, so much the better for him. Cole’s grandmother is dead, which perhaps makes it less risky to imply that she is the fake white Aboriginal person choosing an identity for convenient political and career clout. And what evidence does Bolt have that Cole chose her identity for that clout? Perhaps Bolt’s lucky that he’s been so silenced that all he can do is smear, mutter, and hint darkly about the real truth on the matter.

Oh, and why didn’t Bolt refer to Cole’s grandmother in his original article where he made his claims about Cole? According to the judgment (para 403), Bolt explained that this was because of a lack of space. Justice Bromberg regarded this as disingenuous.

It is interesting to reflect that much of this controversy would have been avoided if Bolt had simply been sued for defamation. For now, it suffices to note that there is a very long and excellent judgment that found that Andrew Bolt’s journalism breached the Racial Discrimination Act.

In regards to freedom of speech, it is a lousy judgment.

But for those seeking a guide to the factual reliability and moral worthiness of what Bolt writes, it is a treasure. Whenever one wants to write about Bolt, one can simply begin by noting that he was found to have breached the Racial Discrimination Act by the Federal Court of Australia. And whenever Bolt insinuates in his writings about things he would say about this case if he were free to do so, review the factual record of what he actually did say when he had his day in court.

Overland is a not-for-profit magazine with a proud history of supporting writers, and publishing ideas and voices often excluded from other places.

If you like this piece, or support Overland’s work in general, please subscribe or donate.

Michael Brull is a columnist at New Matilda. He’s written for other publications including Fairfax, the Guardian, Crikey, Tracker and the Indigenous Law Bulletin.

Comments

…’when he had his day in court’…excellent unwrapping of the whole sorry sorry saga the has become ‘the Andrew Bolt case’ and has ‘inspired’ a repeal of the Racial Discrimination Act. No one really knew what went on in court, since ‘the Andrew Bolt case’ has become shorthand for…I don’t know!

What you fail to raise is that Section 18C is a Holocaust Law modelled on the Canadian and European laws that prohibit a questioning of things Holocaust.
In fact, if Section 18C remains, then we have a TOBEN LAW specifically designed to prevent any revision of World War two history. This brings us in line with European law where “hurt feelings” experienced by anyone of an ethnic minority will suffice to have an “offender” found guilty.
And only yesterday President Putin enacted in law a criminalisation of any criticism of Post-World War Two Nuremberg War Crimes narrative.
So, Michael Brull, let’s hope you do not restrict your focus by not mentioning the actual matter that gave rise to Australia’s organised Jews to formulate in 1994 Section 18C.

So remember:
Privacy has Gone – at least Secure Free Speech. Think about it – Multiculturalism less Free Speech.

Hi Mr Toben. I can’t say I’m flattered or pleased to find you among my readers, but then I have no control over such things.

If we put aside your anti-Semitic innuendos about the power of the Jews, your self-centred conceit that the laws are about you, and your completely incoherent comments at the end, you do raise a point that I agree with.

Specifically, free speech should include the right to offend people. Of course, I made that point above, but never mind. You raise the issue of Holocaust deniers like yourself, which is fair enough, because I do think Holocaust denial should be legal. Which I’ve written in a lot of places – including Tracker, ABC’s The Drum, newmatilda, and possibly even here at Overland. I have argued at length in favour of your freedom of speech.

But noting that you agree people don’t have a right to not be offended, I will just add: I find you completely and utterly disgusting and repellent, and I hope you do not confuse my views on rights, with my views on the merits of the things you believe.

Michael, I can well understand that your infantile emotional sophistry cannot grasp the importance of basing one’s views on actual physical evidence because that would require you to grow up instead of you playing the victim of life forever. Didn’t Max Planck state that only the things we can measure are truthful, to which I would add: and all the rest is opinion?
I wish you well in your studies and hope to see you wear that extra degree with some personal satisfaction, Dr Brull.

Why? Because The Herald Sun was made to publish a wordy order explaining that what Bolt had written was factually incorrect and because Bolt was ordered, in effect, to not publish the same racist and factually incorrect screed again?

Can any of you who doth protest so loudly about how, yes you’d rather not, but one has to defend to the death.. yada yada… pretend you’ve actually read Voltaire and are not quoting him devoid of context for your own pseudo intellectual ends… can you explain to me what you think will happen if the State deems certain acts to be offensive to a person’s race? What’s the hypothetical? Because the theory seems to be that there’s a free thinking kindly Bolt doppelganger out there in the future who will be silenced by these dreadful laws. I mean seriously, breaching 18C isn’t even a crime. And yes I know that contempt of any order would be, but how often has this happened. And only for those as upstanding as Bolt and Toben.

The State determines the limits of public behaviour all the time, 18C is the lousiest tiniest restriction I can imagine. We should all be spending our time talking about anti-terror laws and laws prohibiting public protest, not laws that seek to prohibit flagrant, incorrect and racist public acts.

I feel it is regularly forgotten or at least deemphasised that 18C is not just about any old offensive act done as part of public debate, is is an offensive act done ‘because of [a person or groups] race, colour or national or ethnic origin’. Why defend the right of people to be factually incorrect racists? I don’t understand the binary obsession. Apparently it’s either freedom of speech or you’re a fascist.

In a previous article of Brull’s he stated “If you give power to the State, it will be used as a weapon against the poor and marginalised.” Well good, we can debate the pros and cons of anarchism all day, but at least let us know where you stand.

And how is it that you’ve determined this grand generalisation about State power anyhow? The way 18C has operated is itself an instance countering this statement. Racism entrenches existing power imbalances. 18C, by providing a forum with a conciliator in which grievances about racist comments can be aired and a solution agreed to, has provided a weapon for the poor and marginalised.

Sorry about the rant. I did actually enjoy the article mostly. I’m just yet to be convinced at all by Brull – or Rundle, Tietze, Sparrow and numerous others – that 18C is any kind of threat, and that its removal should be supported.

One hallmark of the entire judicial system is to assure everyone a full and fair hearing. If everyone is not afforded that fundamental fairness before it is determined whether someone is innocent or guilty, liable or not liable, then we are left with an unfair process.That process may never allow subjectivity, prejudice, and arbitrariness to replace fairness.the role of a judge is to be totally unbiased towards either party and not allow political or out side influences to effect there decision making. rules of natural justice are to act fairly, without bias, and the right of all parties to be heard. a courts duty of care which causes damage or loss to safety or welfare of themselves or family must never be accepted Basically, someone commits perjury if they lie in their evidence in a court or tribunal on any important issue. It applies to all courts including the family court.

Any person who –
(i.) Is under any acknowledgement of allegiance, obedience, or adherence to a foreign power, or is a subject or a citizen or entitled to the rights or privileges of a subject or citizen of a foreign power THE hallmark of the entire judicial system is to assure everyone a full and fair hearing. If everyone is not afforded that fundamental fairness before it is determined whether someone is innocent or guilty, liable or not liable, then we are left with an unfair process.That process may never allow subjectivity, prejudice, and arbitrariness to replace fairness.the role of a judge is to be totally unbiased towards either party and not allow political or out side influences to effect there decision making. rules of natural justice are to act fairly, without bias, and the right of all parties to be heard. a courts duty of care which causes damage or loss to safety or welfare of themselves or family must never be accepted Basically, someone commits perjury if they lie in their evidence in a court or tribunal on any important issue. It applies to all courts including the family court. “When injustice becomes law, ONES HUMANS RIGHTS HAVE BEEN BREACHED.It is never appropriate for any party, or any legal practitioner, to attempt to contact a Judge directly about a matter for which the Judge is responsible.
It is not usually appropriate for any party (or any legal practitioner) to contact an associate of a judge about a matter unless all parties are in agreement that this is appropriate and for good reason. If agreement cannot be reached and the issue cannot otherwise be resolved then the Associate may be contacted to arrange for the matter to be listed for directions provided that all parties are advised of the request
Should it become necessary to contact a Judge (through an Associate) about any substantive issue relating to a matter, it is expected that:
* The party and/or practitioner seeking to contact the Associate will first contact each other party or practitioner involved in the case. Any necessary communication will thereafter be joint and in writing.
* In the event that genuine urgency, or other good reason, is said to prevent a joint written communication occurring, the person seeking to contact an Associate should first seek, in writing, consent from each other party/practitioner to contact being made and provide full details of the reason for, and nature of, the intended communication.
* In cases of genuine urgency or in the event that consent is not forthcoming within a reasonable period of time, contact with an Associate should be made, in writing, and contemporaneously, a copy of that communication forwarded to each other party/practitioner.
* A party should not seek to have oral communication with an Associate about any substantive issue unless there are extraordinary circumstances.
* In all cases (unless there are clearly exceptional circumstances) communication from an Associate to parties and/or practitioners about a matter should occur in writing and be sent contemporaneously to all parties/practitioners.
Associates will continue to contact practitioners and parties for the purpose of compliance checks or to check the status of a matter or in accordance with directions of the Court. In such cases, all parties will be contacted and associates are not permitted to give legal advice.. SLAVERY
IS ILLEGAL AND UNCONSTITUTIONAL:
Any person who –
(i.) Is under any acknowledgement of allegiance, obedience, or adherence to a foreign power, or is a subject or a citizen or entitled to the rights or privileges of a subject or citizen of a foreign power THE hallmark of the entire judicial system is to assure everyone a full and fair hearing. If everyone is not afforded that fundamental fairness before it is determined whether someone is innocent or guilty, liable or not liable, then we are left with an unfair process.That process may never allow subjectivity, prejudice, and arbitrariness to replace fairness.the role of a judge is to be totally unbiased towards either party and not allow political or out side influences to effect there decision making. rules of natural justice are to act fairly, without bias, and the right of all parties to be heard. a courts duty of care which causes damage or loss to safety or welfare of themselves or family must never be accepted Basically, someone commits perjury if they lie in their evidence in a court or tribunal on any important issue. It applies to all courts including the family court. “When injustice becomes law, ONES HUMANS RIGHTS HAVE BEEN BREACHED.It is never appropriate for any party, or any legal practitioner, to attempt to contact a Judge directly about a matter for which the Judge is responsible.
It is not usually appropriate for any party (or any legal practitioner) to contact an associate of a judge about a matter unless all parties are in agreement that this is appropriate and for good reason. If agreement cannot be reached and the issue cannot otherwise be resolved then the Associate may be contacted to arrange for the matter to be listed for directions provided that all parties are advised of the request
Should it become necessary to contact a Judge (through an Associate) about any substantive issue relating to a matter, it is expected that:
* The party and/or practitioner seeking to contact the Associate will first contact each other party or practitioner involved in the case. Any necessary communication will thereafter be joint and in writing.
* In the event that genuine urgency, or other good reason, is said to prevent a joint written communication occurring, the person seeking to contact an Associate should first seek, in writing, consent from each other party/practitioner to contact being made and provide full details of the reason for, and nature of, the intended communication.
* In cases of genuine urgency or in the event that consent is not forthcoming within a reasonable period of time, contact with an Associate should be made, in writing, and contemporaneously, a copy of that communication forwarded to each other party/practitioner.
* A party should not seek to have oral communication with an Associate about any substantive issue unless there are extraordinary circumstances.
* In all cases (unless there are clearly exceptional circumstances) communication from an Associate to parties and/or practitioners about a matter should occur in writing and be sent contemporaneously to all parties/practitioners.
Associates will continue to contact practitioners and parties for the purpose of compliance checks or to check the status of a matter or in accordance with directions of the Court. In such cases, all parties will be contacted and associates are not permitted to give legal advice.
“The Founding Fathers were, as in most things, profoundly right. … … But, changing the words they use to describe their actions doesn’t changeI founding father of social justice